Do tax laws gag the clergy?

Sep 16, 2014 | 10:39 AM

Today's question: Is federal tax law too restrictive on clergy who publicly endorse political candidates or voter initiatives? All week, Barry W. Lynn and Erik Stanley discuss the friction between church and state over the issue of political speech from the pulpit.

The IRS is right to bar electioneering by churches

Point: Barry W. Lynn

Federal tax law is, like the baby bear's porridge of fairy tale fame, "just right" when it comes to dealing with the rights of pastors to speak on important issues. The Internal Revenue Code has, since 1954 (when Lyndon Johnson added a noncontroversial amendment on the topic to a tax overhaul bill), made it clear that no nonprofits, religious or secular, may "endorse or oppose any candidate for public office." It does not say that pastors, priests, rabbis or imams cannot applaud or denounce policies of the government at any level; it doesn't prohibit clergy specifically arguing that parishioners should support a named and numbered piece of legislation or an upcoming ballot initiative. It just says no help for candidates on the campaign trail with the resources or imprimatur of your church.

Most pastors obey the letter and the spirit of this law. Indeed, even someone as powerfully engaged in social change as the Rev. Martin Luther King Jr. never endorsed a candidate from any pulpit in America. He spoke with eloquence and passion of what needed to be done, but left the question of which candidates would actually do the right thing to other organizations in the community. He held to the line of the law precisely.

Erik, I know you would like to have the law changed. In October 1992, the Church at Pierce Creek took out a $44,000 advertisement in USA Today advocating that no one should vote for Bill Clinton for president. The ad argued, complete with scriptural passage citations to "prove" the point, that Clinton would follow non-biblical public policies and was thus a "sinner." People who voted for a "sinner," it concluded, committed "sin" also.

I reported that church's tax violation to the Internal Revenue Service and eventually the church lost its tax-exempt status. A federal trial court and an appeals court concurred that the church had engaged in illegal activity. Those courts rejected the expected arguments that churches have some special "free speech" right to engage in partisan electioneering purely because of their religious status and dismissed several other mind-numbingly obtuse issues of statutory construction as well.

The church had actually formed again under another name in order to start soul-saving and fundraising. (The church had only a handful of members, so there must have been one heck of a persuasive fundraising deacon to have $44,000 dropped in the collection plate in the first place.) Ministries of both Pat Robertson and the late Jerry Falwell have also lost tax exemptions for brief periods because of their overtly partisan candidate-thumping actions.

In recent surveys, about two-thirds of Americans approve of the idea that pastors shouldn't endorse candidates, and indeed many believe that they shouldn't be able to even speak on issues from the pulpit (the latter restrictions would violate the 1st Amendment, of course). Many of those respondents have probably seen the damage that can be done when partisan efforts divide congregations and get in the way of spiritual renewal. Please think about these ramifications as you plot your efforts to politicize American pulpits.

Perhaps you would also recall John F. Kennedy's famous statement in 1960 that he believed in an America "where the separation of church and state was absolute ... where no Catholic prelate would tell the president how to act ... and no Protestant clergyman would tell his congregation for whom to vote."

Barry, federal tax law is not like the proverbial "baby bear's porridge" that was "just right." Rather, it is like the wolf in Little Red Riding Hood that disguises itself to devour Little Red. You have tried to disguise the tax code as a nice way to keep churches in their proper place in society. Nothing could be further from the truth, and, all too frequently, the tax code devours a pastor's right to speak freely to his congregation from his pulpit.

The Alliance Defense Fund's Pulpit Initiative is intended to restore the right of pastors to speak freely to their congregations. The goal is not to turn churches into political action committees. Rather, the Pulpit Initiative is designed to restore freedom to the pulpit. Our republic thrived throughout history when church pulpits were free from government restriction. As historians have noted, pastors led the way in many of the issues our country grappled with in its history, including independence from Britain, ending child labor, promoting women's suffrage and ending slavery and segregation, to name a few.

And, Barry, it is not enough to point to all the things pastors are allowed to do to justify the one restriction on their free exercise of religion. As an example, it did not soothe the black community to point to some of the drinking fountains, lunch counters and schools open to them when they were still prohibited by racial segregation laws from equal access to all facilities. Nor does it placate pastors to remind them of all the things they can speak on, except for one issue.

The point is not whether pastors actually will speak on the issues of candidates and elections (and no one is forcing or telling them to speak about candidates or elections), but whether the government has the right to tell them they cannot under threat of losing their tax-exempt status, which is not a gift but a right. Barry, as an advocate of the "separation of church and state," it is incredibly ironic that you are opposing ADF's Pulpit Initiative and, in essence, arguing for continued government censorship and control over pastors' sermons. The government has no business being in the pulpits of America.

The Church at Pierce Creek case is not even analogous to the Pulpit Initiative. The Pulpit Initiative is not about churches running full-page political ads in newspapers. Indeed, in that case, the church never asserted that placing the ad was part of its free exercise of religion. In contrast, a pastor speaking from the pulpit to his congregation is the "core" of the free exercise of religion. As you must know, no federal court has ever been confronted with a constitutional challenge to the government's restriction on what a pastor says from the pulpit. The point of the Pulpit Initiative is to create a legal precedent that restores the right of pastors to speak freely from the pulpit without government censorship or control.

A pastor has a right to speak freely from his pulpit without government censorship or control over what he chooses to say. It is the job of the pastor, not the IRS, to determine the content of his sermon. That's something we can all say "amen" to.

Erik Stanley is senior legal counsel and head of the Pulpit Initiative for the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith.